Free Reply/Response Misc - District Court of Connecticut - Connecticut

Case 3:02-cr-00007-JBA

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Filed 09/08/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA v. WILFREDO PEREZ, aka "Wil" and "Wilfred" Criminal No. 3:02CR007(JBA)

September 8, 2005

UNITED STATES' RESPONSE TO DEFENDANT WILFREDO PEREZ'S SENTENCING MEMORANDUM Defendant Wilfredo Perez presently argues that, at his sentencing, the Court may impose a "fine only" sentence, rather than a sentence of mandatory life imprisonment, because the relevant statutory provisions provide for a mandatory sentence of life (or death) or a fine. The Second Circuit has squarely rejected the defendant's claim; therefore, the Court should impose a life sentence on counts one, two and four, and a consecutive five year sentence on count five. 1. Sections 1958 and 1959 Require Mandatory Life Sentences

In United States v. James, 239 F.3d 120, 126 (2d Cir. 2000), the Second Circuit addressed the exact same issue that defendant Perez now raises ­ whether 18 U.S.C. § 1959(a)(1) allows the sentencing court to impose a fine lieu of imprisonment. The Second Circuit squarely rejected this claim: Appellant's reading of the statute is, however, deeply problematic. It is hard to believe that Congress intended to permit a sentence of a fine with no prison time in cases of, for example, a drug-related murder such as the one at issue in this case. The notion that the statute contemplates the imposition of a fine without imprisonment cannot be reconciled with the

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extremely harsh punishments­death imprisonment­otherwise available.

or

life

Id. (footnote omitted). Because of the absurdity of the defendant's proposed interpretation, the Court held that the statute required a sentence of mandatory life: We see no basis for concluding that Congress intended the unlikely result that, unless there were acceptable grounds for a downward departure, a judge was free to reject a death sentence or life imprisonment for a defendant convicted under 18 U.S.C. § 1959(a)(1), but only by sentencing that defendant to a fine without prison time. Accordingly, we affirm the district court's decision that 18 U.S.C. § 1959(a)(1) carries a mandatory minimum sentence of life in prison. Id. at 127. The Second Circuit's reasoning in James applies equally to 18 U.S.C. § 1958, which contains the same disjunctive language that appears in § 1959(a)(1). Whereas § 1958 provides that the defendant "shall be punished by death or life imprisonment, or shall be fined not more than $250,000, or both"; §1959 provides that the defendant shall be punished by "death or life imprisonment, or a fine under this title, or both[.]" Thus, under James, both sections 1958 and 1959 should require mandatory life sentences. The defendant argues that James should not control in his case because (a) James is inconsistent with the Second Circuit's decision in United States v. Pabon-Cruz, 391 F.3d 86 (2d Cir. 2004), which reached a different result than James when interpreting a pornography statute; and (b) the facts of his case are distinguishable from those in James. As the defendant concedes, however, Pabon-Cruz did not overrule James, but rather distinguished it:

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James presents a situation where the plain language of the statute is indeed nonsensical enough to indicate that that plain meaning could not have been what Congress intended. To allow no option between capital punishment or life imprisonment, on the one hand, and a fine, on the other, is incomprehensible. We assume, in the instant case as in others, that Congress did not intend an absurdity. Cf. Pub. Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 470 (1989) (Kennedy, J., concurring) (describing absurdity rule as "demonstrat[ing] a respect for the coequal Legislative Branch, which we assume would not act in an absurd way"). Pabon-Cruz, 391 F.3d at 104 (emphasis added). Thus, Pabon-Cruz does not undermine James by any measure, and offers the defendant no relief. Likewise, the facts of the present case have no bearing on how sections 1958 and 1959 should be interpreted. As shown above, the court in James used the facts of that case to illustrate the absurdity of the defendant's proposed statutory interpretation, not to justify a particular interpretation in that particular case. James, 239 F.3d at 126. It is simply not possible that differing facts may give rise to differing statutory interpretations in § 1959 cases. In sum, the Second Circuit's decision in James is controlling, and sections 1958 and 1959 must be construed to require a mandatory life sentence. 2. Section 924(j) Requires a Consecutive Sentence

In 1996, 18 U.S.C. § 924(c)(1) provided: (c)(1) Whoever, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years. . . . Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that -3-

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imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried. (Emphasis added.) Section 924(j)1 provided: A person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall­ (1) if the killing is a murder (as defined in section 1111), be punished by death or by imprisonment for any term of years or for life . . . Because section 924(j) enhances the penalty for a section 924(c) violation, courts have construed section 924(j) to incorporate section 924(c)'s consecutive-sentence requirement. See United States v. Battle, 289 F.3d 661, 665-66 (10th Cir. 2002); United States v. Yazzie, 1998 WL 255299, *2 (9th Cir. 1998). Accordingly, for count five, the Court should sentence the defendant to a consecutive sentence of at least five years. Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY /s/ DAVID A. RING ASSISTANT U. S. ATTORNEY 157 Church Street P.O. Box 1824 New Haven, Connecticut 06510 (203) 821-3700 Federal Bar No. CT14362

In 1996 section 924 contained two subsections "(i)", the later of which was relettered "(j)." -4-

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CERTIFICATION OF SERVICE This is to certify that the within and foregoing has been sent via first-class mail this 8th day of September, 2005, to: Richard Reeve, Esq. Michael Sheehan, Esq. Sheehan & Reeve 139 Orange Street, Suite 301 New Haven, Connecticut 06510 William Koch Law Offices 151 Brush Hill Rd. Lyme, CT 06371

/s/ DAVID A. RING ASSISTANT UNITED STATES ATTORNEY

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